Dissertation

Today, an energetic president seems to be an obstacle rather than an asset for the preservation of constitutional government in the United States. Expansive interpretations of the meanings of “national security” and “emergency” into catch-all phrases to capture almost any area of foreign or domestic policy blurs the line between legislative and executive powers. Formal theories of implied presidential powers associate expressly delegated, statutory authority with constitutional legitimacy. In the context of foreign and domestic emergencies, formal theories of implied presidential power are lacking because they neglect to consider the normative duties of the president that exist independently of express legal authorizations from Congress. Presidential scholars have attempted to theorize the normative duties of the president in order to articulate the need for an energetic executive with respect to war and domestic emergencies. The existing theories of informal executive power go too far in claiming that the presidency possesses implied prerogative powers to act both outside and against the law when foreign or domestic emergencies necessitate extraordinary presidential action. In this view, implied presidential powers are extra-constitutional in nature, making them indefeasible through legislative statutes or judicial review. I argue such a theory is problematic because it leaves no role for Congress, the Court, or other institutions to exercise their coordinate constitutional functions to check presidential assertions of necessity.

 

This dissertation theorizes how the presidency’s independent Article II powers and duties should be understood with respect to momentary exigencies such as wars and emergencies. In order to construct a meaningfully limited, albeit strong understanding of the president’s implied powers, I theorize the need for an energetic, constitutional presidency. I construct a normative theory of the executive’s implied presidential powers by analyzing historical insights from eighteenth-century and early American constitutional thought. The executive power to act in response to a momentary security threat was a feature, not a bug of eighteenth-century constitutionalist thought in the work of thinkers such as Charles Baron de Montesquieu and William Blackstone. My theory of implied presidential power obligates the executive to momentarily act outside legal authorizations if necessary, but not against the limits of the Constitution and institutional checks. The executive’s duty to exercise implied power for the purpose of the nation’s self-defense is checked by institutional oversight and their evaluations of the urgency and necessity of unilateral presidential action for the security of the state and its people. Continued misunderstanding of the origin and limits of executive powers in foreign and domestic emergencies will leave us in constitutional paralysis, inhibiting our ability to hold the president accountable for injustices from both abuses of power and inaction. As the nature of emergencies evolves in the twenty-first century, the need for a clearer constitutional framework for understanding the scope of the president’s implied powers becomes increasingly important in the face of looming emergencies posed by geopolitical instability, our increasingly polarized politics, populism and hostile rhetoric towards minority groups, and the threat of climate change and its effects on both domestic and geopolitics.